Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Pradyumna Kumar Sahu & Ors on 20 February, 2023
29
20.02.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1130 of 2013
with
IA No. CAN 1 of 2012 (CAN 8443 of 2012)
with
CAN 3 of 2019 (CAN 704 of 2019)
with
CAN 4 of 2023
The New India Assurance Co. Ltd.
Vs.
Pradyumna Kumar Sahu & Ors.
with
COT 88 of 2013
Pradyumna Kumar Sahu & Anr.
Vs.
The New India Assurance Co. Ltd. & Anr.
Mr. Sanjay Paul
... For the appellant/Insurance Co. in FMA
1130 of 2013 & respondent no.1/
Insurance Co. in COT 88 of 2013
Mr. Jayanta Kumar Mandal
... For the respondents/claimants in
FMA 1130 of 2013 & Cross Appellants/
Claimants in COT 88 of 2013
In re: CAN 4 of 2023
On behalf of the claimants/cross appellants, this
application is filed on account of death of the respondent/
claimant no.2, Supriya Sahu, along with a prayer for
substituting the names of her son Subhasis Sahu and
daughter Meenakshi Sahu as respondent/claimant
nos.2(a) and 2(b). This application has been filed along
with a death certificate in respect of Supriya Sahu, the
claimant no.2.
2
Heard both sides.
Considering the facts and circumstances, the
prayer for substitution is allowed. Son and daughter of the
deceased claimant, namely, Subhasis Sahu and
Meenakshi Sahu are substituted in place and stead of
Supriya Sahu, since deceased.
Department is directed to carry out the necessary
amendment in the cause of the Memorandum of Appeal
forthwith.
CAN 4 of 2023 stands disposed of.
In re: FMA 1130 of 2013 with COT 88 of 2013
This appeal is directed against the judgment and
award dated 30th May, 2012 passed by the learned Judge,
Motor Accident Claims Tribunal, 3rd Court, Barasat, North
24-Parganas, in connection with MAC Case No.150 of
2007 under Section 166 of the Motor Vehicles Act, 1988
whereby the learned Judge awarded compensation to the
tune of Rs.59,38,660/- along with interest @ 6% per
annum from the date of filing of the claim petition.
Being aggrieved by and dissatisfied with the said
judgment, New India Assurance Company Limited
preferred this appeal on the ground that the learned
Tribunal did not consider the deduction of 50% from the
income of the deceased as well as nothing was deducted
towards tax paid by the deceased at the time of accidental
death.
3
The claim petition was filed on account of death of
one Devasish Sahu who was an employee of Cognizant
Technology Solutions India Private Limited, Salt Lake,
having income of Rs.74,177/-. It was alleged that on 8th
March, 2007 at about 6.00 hours the offending vehicle,
bearing registration no.WB-25B/4175 (Ambassador), was
proceeding from Nicco Park to J.K. Saha Bridge, with
extreme speed and also in rash and negligent manner,
without blowing any horn also violating the traffic rules,
directly knocked down Devasish Sahu and one Tapas Das.
As a result of which the victim Devasish Sahu and Tapas
Das got severe injuries on their person. They were moved
to Bidhannagar Sub-Divisional Hospital where Devasish
Sahu was declared as 'brought dead'. After the accident,
Bidhannagar (East) Police Station Case No.15 dated 8th
March, 2007 under Sections 279/338/427/304A of the
Indian Penal Code was started and after investigation
charge sheet was submitted against the driver of the
vehicle. That is why the claim petition was filed by the
claimants with a prayer for compensation to the tune of
Rs.60,00,000/-.
Owner did not contest the claim petition but the
New India Assurance Company Limited with whom the
offending vehicle was insured contested the case by filing
written objection denying all material averments of the
claim petition contending, inter alia, that there was no
negligence on the part of the vehicle for the accident and
4
the claimants are not entitled to any compensation, as
prayed for.
To prove the case, the claimants examined as
many as three witnesses, namely, Pradyumna Kumar
Sahu, father of the deceased, as PW-1, one Soumitra
Mondal as PW-2 and one Sandipan Roy as PW-3. In course
of their evidence, First Information Report, charge sheet,
insurance policy, post-mortem report, pay slip of the
deceased, death certificate, admit card etc. were admitted
in evidence and marked as Exhibit 1 to 10.
Learned Judge of the Tribunal after assessing the
evidence on record together with the documents returned
his finding that there was accidental death of Devasish
Sahu, who was an employee of Cognizant Technology
Solutions India Private Limited, Salt Lake, and accordingly
assessed compensation considering the earning of the
deceased as Rs.74,177/-.
By filing a cross-appeal, being COT 88 of 2013, the
claimants made prayer for considering the future prospect,
general damages and the proper multiplier in terms of the
age of the deceased which were not considered by the
learned Tribunal.
After scrutiny of the evidence of PW-1 and PW-2, I
do not find any reason to interfere with the observation of
the learned Tribunal regarding death of Devasish Sahu in
a road traffic accident by the involvement of the vehicle,
5
bearing registration no.WB-25B/4175 (Ambassador) and
the accident took place only due to rash and negligent
driving of the vehicle. That apart, none of the learned
advocates appearing on behalf of the parties to this appeal
raise the issue of accidental death of Devasish Sahu by the
involvement of the vehicle mentioned above.
On perusal of evidence of PW-3, Junior Executive
of Cognizant Technology Solutions India Private Limited, I
find that Devasish Sahu was an employee of the
institution and he used to draw his salary of Rs.74,177/-
which was further substantiated by the salary certificate
admitted in evidence as Exhibit-5. It is true that the
deceased used to draw salary of Rs.74,177/- per month
but the learned Tribunal at the time of assessing salary
did not deduct the amount towards income tax of
Rs.1,604/- and professional tax of Rs.200/- from the
salary of the deceased. Therefore, after deduction of
income tax and professional tax, the income of the
deceased comes to Rs.72,373/-. It is needless to mention
that in view of the principle laid down by the Hon'ble Apex
Court in National Insurance Co. Ltd. v. Pranay Sethi &
Ors. reported in (2017) 16 SCC 680 = 2017 ACJ 2700,
the claimants are also entitled to future prospect @ 40% of
the income and general damages of Rs.33,000, including
10% increase every three years.
In the aforesaid conspectus, I propose to modify
the compensation as follows:-
6
Monthly Income Rs. 72,373/-
(Rs.74,177/- - Rs.1604/- + Rs.200/-)
Annual Income (Rs.72,373/- x 12) Rs. 8,68,476/-
Less: 50% Deduction (personal expenses) Rs. 4,34,238/-
-------------------
Rs. 4,34,238/-
Add: Future prospect (@ 40%) Rs. 1,73,695/-
-------------------
Rs. 6,07,933/-
-------------------
Rs.1,03,34,861/-
Add: General Damages Rs. 33,000/-
---------------------
Total Compensation Rs.1,03,67,861/-
For the reasons, it is seen that the
claimants/cross-appellants are entitled to the total
compensation to the tune of Rs.1,03,67,861/-.
It appears from the record that on behalf of the
appellant/Insurance Company, the entire amount
awarded by the learned Tribunal to the tune of
Rs.59,38,660/- was already deposited before the office of
the learned Registrar General of this Court. Learned
advocate appearing on behalf of the appellant/Insurance
Company has also submitted that interest @ 6% per
annum was not deposited with the awarded amount before
the office of the learned Registrar General on 14th January,
2013.
It is asserted by the learned advocate appearing on
behalf of the respondents/claimants/cross-appellants that
they already withdrew the amount of Rs.30,00,000/- on
23rd July, 2014 out of the awarded amount of
Rs.59,38,660/- deposited by the appellant/Insurance
Company.
Therefore, the claimants/cross-appellants are
entitled to the balance compensation amount of
Rs.44,29,201/- (Rs.1,03,67,861/- - Rs.59,38,660/-) along
with interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 23rd July, 2007 till the deposit of the
amount. The claimants/cross-appellants are also entitled
to the interest @ 6% per annum on the amount of
Rs.59,38,660/- from 23rd July, 2007 till 14th January,
2013. The claimants/cross-appellants are also entitled to
withdraw the remaining amount of Rs.29,38,660/-
(Rs.59,38,660/- - Rs.30,00,000/-) with accrued interest
which was already deposited by the appellant/Insurance
Company with the office of the learned Registrar General
on 14th January, 2013.
Accordingly, the appellant/New India Assurance
Company Limited is directed to deposit the enhanced
amount of Rs.44,29,201/- along with interest @ 6% per
annum from the date of filing of the claim petition, i.e. on
23rd July, 2007 till the actual deposit of the amount before
the office of the learned Registrar General of this Court,
within six weeks from the date of this order. The
appellant/Insurance Company is also directed to deposit
interest @ 6% per annum on the amount of
Rs.59,38,660/- from 23rd July, 2007 till 14th January,
2013.
The claimants/cross-appellants are entitled to
withdraw the entire awarded amount with interest and
accrued interest, subject to payment of additional ad
valorem court fees on the amount of Rs.43,67,861/-
(Rs.1,03,67,861/- - Rs.60,00,000/-) before the learned
Tribunal.
The learned Registrar General is requested to
disburse the entire compensation amount along with
interest and accrued interest to the claimants/cross-
appellants in equal share on proper identification and
proof.
With the above observations, both the appeal,
being FMA 1130 of 2013 and the Cross-Appeal, being COT
88 of 2013, stand disposed of.
All pending applications, if there be any, stand
disposed of.
Records of the learned Tribunal along with a copy
of this order be transmitted back immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
